Better sooner than later, or at least it might be for the White House. The Supreme Court agreed to add a challenge to the Fifth Circuit’s broad injunction against Barack Obama’s executive actions on immigration to its docket, setting up a dramatic showdown in April between 26 states and the federal government. The injunction cites demonstrable harm to the states and the limitations of executive authority in offering relief to broad classes of people without Congressional approval. The Obama administration wants its programs back on line by the summer, and hopes the Supreme Court will open the door:
The Supreme Court said Tuesday that it would consider a legal challenge to President Obama’s overhaul of the nation’s immigration rules. The court, which has twice rejected challenges to Mr. Obama’s health care law, will now determine the fate of one of his most far-reaching executive actions.
Fourteen months ago, Mr. Obama ordered the creation of a program intended to allow as many as five million illegal immigrants who are the parents of citizens or of lawful permanent residents to apply for a program sparing them from deportation and providing them work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. …
If the Supreme Court upholds Mr. Obama’s actions, the White House has vowed to move quickly to set up the DAPA program and begin enrolling immigrants before his successor takes over early next year. Democratic presidential candidates have said they will continue the program, but most of the Republicans in the race have vowed to dismantle it and redouble immigration enforcement.
The administration, fearing that the program could remain frozen through the balance of Mr. Obama’s presidency, had asked the court to move quickly. On that point, at least, the court agreed, and it now appears that the case will be argued in April and decided by the end of June.
Solicitor General Donald Verrilli will revive the standing argument, which might pre-empt authority issues if successful:
Solicitor General Donald Verrilli Jr. said in his court filing that allowing those rulings to stand would force millions of people “to continue to work off the books, without the option of lawful employment to provide for their families.”
The administration said Texas and the other states don’t even have the right to challenge the plan in federal court. The lower courts decided that Texas does have the right, or standing, to sue because at least 500,000 people living in Texas would qualify for work permits and thus become eligible for driver licenses, the cost of which are subsidized by the state. “Texas would incur millions of dollars in costs,” the state said in its brief to the Supreme Court.
It takes four votes to grant cert, but what those votes mean is anyone’s guess. This is the kind of fight that would normally seize the interest of the Supreme Court — a dispute between states and Washington, which fits directly into its constitutional mandate. They could have passed on the challenge and allowed the injunction to remain while the case gets argued on the merits at the district level, as it has not been fully adjudicated as of yet. The fact that they didn’t might mean that they want to override the injunction, or it just might mean that they want to dispense with the case quickly in order to settle the precedent once and for all.
The court date for oral arguments will be in April, with an expected decision at the end of the court’s term in June. That may have an impact on the presidential race, even assuming both parties manage to choose a nominee ahead of the conventions that will take place in July. Assuming the court vacates the injunction, it will create a firestorm at the GOP’s confab — and if it doesn’t, it might create a meltdown of another sort with Democrats, especially among progressives.
The court dispensed with another case favored by opponents of ObamaCare — the Origination Clause challenge:
#SCOTUS denies 15-543, Sissel v. HHS, a challenge to Affordable Care Act under Constitution's Origination Clause
— SCOTUSblog (@SCOTUSblog) January 19, 2016
Randy Barnett offered a defense of this challenge to ObamaCare fifteen months ago, but this was always a long shot. The court rarely ventures into the application of legislative branch rules and processes, preferring to allow the coequal branch to police itself to the greatest extent possible. The argument had merit, but it would take a much more aggressive court than this one to have interceded on these grounds. This is the same court, after all, that found the individual mandate to be a constitutionally acceptable tax as an excuse to pass on overturning the Affordable Care Act.
Basically, this means that the Origination Clause is more of a theoretical bar than a practical obstacle. It’s too bad that it didn’t at least get a hearing at the Supreme Court; it would have been enlightening to hear that argument play out and to have the justices decide the challenge on merit.